PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of
March ___, 2005 (the "Effective Date"), between AMHERST INVESTORS BUSINESS
TRUST, a Delaware business trust ("Seller"), having an address c/o U.S. Realty
Advisors, LLC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and MICRON
REALTY LLC, a New York limited liability company ("Purchaser"), having an
address c/o GE Equities Corp., 0000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000.
RECITALS:
A. Seller owns the leasehold estates in the Property (as hereinafter
defined) pursuant to the terms and conditions of the Agency Leases (as
hereinafter defined); and
B. Purchaser desires to acquire from Seller, and Seller desires to
sell to Purchaser, the Property, in accordance with and subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, Seller and Purchaser agree as
follows:
ARTICLE I
Definitions
The following capitalized terms used in this Agreement shall have
the meanings ascribed to them below:
"Agency Leases" shall mean collectively (i) the Amended and Restated
Lease Agreement, dated as of October 21, 1998, between the Town of Amherst
Industrial Development Agency, as lessor, and Seller, as lessee, and (ii) the
Consolidated, Amended and Restated Lease Agreement, dated as of October 21,
1998, between the Town of Amherst Industrial Development Agency, as lessor, and
Seller, as lessee.
"Additional Deposit" shall have the meaning set forth in Section
2.02(a) of this Agreement.
"Assignment of Agency Leases" shall have the meaning set forth in
Section 5.01(b) of this Agreement.
"Assignment of Net Lease" shall have the meaning set forth in
Section 5.01(b) of this Agreement.
"Assignments of Leases and Rents" shall mean the two Assignments of
Leases and Rents, each dated as of October 26, 1998, made by Seller in favor of
Lender.
"Closing" shall have the meaning set forth in Section 2.03 of this
Agreement.
"Closing Date" shall have the meaning set forth in Section 2.03 of
this Agreement.
"DD Termination Deadline" shall have the meaning set forth in
Section 4.04(a)(iii) of this Agreement.
"Deposit" shall have the meaning set forth in Section 2.02(a) of
this Agreement.
"Designated Parties" shall have the meaning given such term in
Section 3.01 of this Agreement.
"Diligence Period" shall have the meaning set forth in Section
4.04(a)(iii) of this Agreement.
"Effective Date" shall have the meaning given such term in the
Preamble of this Agreement.
"Escrow Agent" shall mean Proskauer Rose LLP.
"Environmental Indemnity Agreement" shall mean the Environmental
Guaranty and Indemnity, dated as of October 26, 1998, made by Seller in favor of
Lender.
"Existing Agreements" shall mean the Property Material Agreements
and the other agreements, if any, listed on Exhibit D to this Agreement.
"Existing Indebtedness" shall mean the indebtedness evidenced by the
Mortgage Notes and secured by the Mortgages.
"Existing Loan Documents" shall mean, collectively, the following
agreements:
(a) the Mortgage Notes;
(b) the Mortgages;
(c) the Assignment of Leases and Rents; and
(d) the Environmental Indemnity Agreement.
"Initial Deposit" shall have the meaning set forth in Section
2.02(a) of this Agreement.
"Lender" shall mean San Francisco City and County Employees'
Retirement System, together with its successors and assigns.
"Lessee" shall mean Xxxxxx Micro, Inc., a Delaware corporation.
"Mortgages" shall mean collectively the (i) Mortgage, Security
Agreement, Fixture Filing, Financing Statement and Assignment of Leases and
Rents, dated as of October 26, 2998, by the Town of Amherst Industrial
Development Agency and Seller, as mortgagors, in favor of Lender as mortgagee
securing a mortgage note in the original principal amount of $9,800,000,
(ii)Mortgage, Security Agreement, Fixture Filing, Financing Statement and
Assignment of Leases and Rents, dated as of October 26, 2998, by the Town of
Amherst Industrial Development Agency and Seller, as mortgagors, in favor of
Lender as mortgagee securing a mortgage note in the original principal amount of
$961,000, and (iii) Mortgage Consolidation, Modification and Spreader Agreement,
dated as of October 29, 1998, between the Town of Amherst Industrial Development
Agency and Seller, as mortgagors, and Lender, as mortgagee.
"Mortgage Notes" shall mean collectively (i) the Promissory Note in
the original principal amount of $9,800,000, dated as of October 26, 1998, made
by Seller in favor of Lender, and (ii) the Promissory Note in the original
principal amount of $961,000, dated as of October 26, 1998, made by Seller in
favor of Lender.
"Net Lease" shall mean that certain Consolidated, Amended and
Restated Sublease Agreement, dated as of October 21, 1998, between Wilpet
L.P.and Lessee, as assigned to Seller by Wilpet L.P. pursuant to that certain
Assignment and Assumption of Leasehold Interest, dated as of October 21, 1998,
from Wilpet L.P., as assignor, and Seller, as assignee.
"Permitted Exceptions" shall have the meaning set forth in Section
4.04(b) of this Agreement.
"Person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, estate, trust, unincorporated
association, any federal, state, county or municipal government or any bureau,
department or agency thereof and any fiduciary acting in such capacity on behalf
of any of the foregoing.
"Property" shall have the meaning given such term in Section 2.01 of
this Agreement.
"Property Material Agreements" shall mean, collectively, the
following agreements affecting the Property as of the Effective Date, as the
same may hereafter be amended:
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(a) The Net Lease;
(b) The Agency Leases;
(c) the Mortgage Notes;
(d) the Mortgages;
(e) the Environmental Indemnity Agreement; and
(f) the Assignment of Leases and Rents.
"Purchase Price" shall have the meaning given such term in Section
2.02 of this Agreement.
"Purchaser" shall have the meaning given such term in the Preamble
of this Agreement.
"Purchaser's Closing Costs" shall have the meaning given such term
in Section 2.04(b) of this Agreement.
"Purchaser Closing Documents" shall have the meaning given such term
in Section 3.02(b) of this Agreement.
"Purchaser's Due Diligence Condition" shall have the meaning set
forth in Section 4.04(a)(iii) of this Agreement.
"Purchaser's Related Parties" shall have the meaning given such term
in Section 2.05(b)(v) of this Agreement.
"Seller" shall have the meaning given such term in the Preamble of
this Agreement.
"Seller Closing Documents" shall have the meaning given such term in
Section 3.01(b) of this Agreement.
"Seller's Closing Costs" shall have the meaning given such term in
Section 2.04(a) of this Agreement.
"Seller's Related Parties" shall have the meaning given such term in
Section 2.05(b)(iv) of this Agreement.
"Title Insurer" shall mean Ticor Title Guarantee Company.
"Title Policy" shall have the meaning given such term in Section
4.04(b) of this Agreement.
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ARTICLE II
Agreement to Sell and Purchase;
Terms of Sale and Purchase
2.01. Agreement to Sell and Purchase. In consideration of the mutual
covenants and agreements set forth herein and upon and subject to the terms,
provisions and conditions of this Agreement, Seller agrees to sell, assign,
transfer and convey to Purchaser, and Purchaser agrees to purchase and acquire
from Seller, all of Seller's right, title and interest in and to leasehold
estate under the Agency Leases covering that certain real property located in
Amherst, New York, as more particularly identified and described on Exhibit A
attached hereto, together with all of Seller's right, title and interest in (a)
all improvements and personal property situated thereon, if any, and (b) all
easements, rights of way, privileges, appurtenances, and other estates and
rights, if any, appurtenant to the real property, all of which is subject to the
Net Lease, the Mortgage, the other Property Material Agreements and all other
Permitted Exceptions (collectively, the "Property"), in accordance with and
subject to the terms and conditions of this Agreement.
2.02. Purchase Price; Prorations. The purchase price payable by Purchaser
to Seller for the conveyance of title to the Property shall be Twenty One
Million Six Hundred Thousand and 00/100 Dollars ($21,600,000.00), subject to
increase under the conditions and by the amount described in Section 2.02(c)
hereof (the "Purchase Price"), payable as follows:
(a) One Hundred Thousand and 00/100 Dollars ($100,000.00)
(such amount, together with any and all interest accrued thereon,
hereinafter collectively referred to as, the "Initial Deposit") on the
date hereof by check, subject to collection, payable to the order of
Escrow Agent, to be held by Escrow Agent pursuant to and in accordance
with the provisions of Section 4.05 hereof. In addition, unless Purchaser
shall elect to terminate this Agreement before the expiration of the
Diligence Period in accordance with the provisions of Section 4.04(a)(iii)
hereof, Purchaser shall, on the first business day following the
expiration of the Diligence Period, deliver to Escrow Agent, by wire
transfer of immediately available funds to an account designated by Escrow
Agent not later than two (2) business days prior to the expiration of the
Diligence Period (the "Escrow Account"), an additional Four Hundred
Thousand and 00/100 Dollars ($400,000.00) deposit (such amount, together
with any interest earned thereon, being hereinafter referred to as the
"Additional Deposit"; the Initial Deposit and the Additional Deposit,
together with any Supplemental Deposit delivered by Purchaser pursuant to
Section 6.11 hereof, are hereinafter collectively referred to as the
"Deposit"). In the event Purchaser shall fail to deliver the Additional
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Deposit as provided herein, such failure shall constitute a material
default by Purchaser under this Agreement and thereupon Seller shall be
entitled to terminate this Agreement upon written notice to Purchaser and
retain the entire Initial Deposit as and for liquidated damages. Purchaser
acknowledges that after the expiration of the Diligence Period, the
Deposit is absolutely non-refundable, except (i) in the event of a failure
of a condition precedent to Purchaser's obligation to close, or (ii) upon
the occurrence of a default hereunder by Seller, or (iii) as otherwise
expressly provided in this Agreement; and
(b) Twenty One Million One Hundred Thousand and 00/100 Dollars
($21,100,000.00), representing the balance of the Purchase Price (subject
to any increase as provided in Section 2.02(c) hereof), on the Closing
Date by wire transfer of immediately available United States federal funds
to the account or accounts designated by Seller not later than two
business days prior to the Closing Date. Any wire transfer on the Closing
Date shall be made by 11:00 A.M., Eastern Standard Time, on such date.
(c) Under this Agreement, Purchaser will be purchasing the
Property free and clear of the Existing Indebtedness. However, under the
terms of the Existing Indebtedness a prepayment premium will required to
be paid by Seller to Lender at the time that Seller satisfies the Existing
Indebtedness in connection with the sale to Purchaser. Seller and
Purchaser have agreed that (i) if, on the second business day preceding
the Closing Date (including actual extension thereof permitted or granted
under this Agreement), the then most-recently published (at
xxxx://xxx.xxxxxxxxxxxxxx.xxx/xxxxxxxx/x00/xxxx.xxx) 7-year and/or 10-year
Constant Maturity Yield Index (weekly) is lower than 3.99% or 4.25%,
respectively, and (ii) if by reason of such lower rate(s) on the Constant
Maturity Yield Index the prepayment premium payable by Seller shall exceed
$1,320,000.00 based on the methodology shown in EXHIBIT E hereto, then the
Purchase Price payable by Purchaser to Seller on the Closing Date shall be
increased by the amount of the prepayment premium payable by Seller under
the Existing Indebtedness in excess of $1,320,000.00.
(d) Purchaser acknowledges that the Property is net leased to
the Lessee pursuant to the Net Lease and that the Basic Rent (as defined
in the Net Lease) is payable monthly in advance directly by Lessee to
Lender and that Lender deducts debt service due to Lender pursuant to the
Mortgage Notes for the preceding month and remits the excess to Seller
(such excess hereinafter referred to as the "Excess Monthly Cash Flow").
On the Closing Date, the Excess Monthly Cash Flow shall be apportioned
between Seller and Purchaser as of 11:59 P.M. on the day immediately
preceding the Closing Date and there shall be no other apportionments,
prorations or adjustments between Seller and Purchaser.
(e) Seller shall, on the Closing Date, cause the Existing
Indebtedness to be satisfied. It is understood that Purchaser is
purchasing the Property subject to the Net Lease and the other Property
Material Agreements (other than the Existing Loan Documents) and all other
Existing Agreements, if any, which obligations shall survive the purchase
by Purchaser.
2.03. The Closing. The consummation of the sale and purchase of the
Property contemplated by this Agreement (the "Closing") shall take place at the
offices of Xxxxxxxxx Xxxx XXX, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, or at such
other location in New York City as shall be mutually acceptable to the parties.
The Closing shall take place at 10:00 a.m., New York time, on a Business Day
(the "Closing Date") not earlier than thirty (30) days after the end of the
Diligence Period, as to which date time shall be of the essence.
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2.04. Closing Costs.
(a) In connection with the conveyance of the Property by Seller to
Purchaser, Seller shall pay ("Seller's Closing Costs"): (i) the fees and
expenses of Seller's legal counsel, (ii) any transfer taxes, recording fees and
charges and other costs due and payable in connection with transfer of the
Property and the transactions contemplated herein, and (iii) all costs payable
or reimbursable to Lender or any of its agents in connection with the
satisfaction of the Existing Indebtedness.
(b) In connection with the conveyance of the Property by Seller to
Purchaser, Purchaser shall pay ("Purchaser's Closing Costs"): (i) all costs
associated with its due diligence, including the costs of inspections, studies,
surveys, analysis and tests of the Property, (ii) the fees and expenses of
Purchaser's legal counsel, (iii) the title premium payable in connection with
any title policy and any endorsements thereto obtained by Purchaser, and (iv)
all costs incurred in connection with obtaining a survey of the Property.
(c) The provisions of this Section 2.04 shall survive the Closing
or, in the alternative, the termination of this Agreement.
2.05. Defaults/Non-Recourse.
(a) If the Closing shall not occur due to Purchaser's failure or
refusal to perform Purchaser's obligations under and in accordance with this
Agreement, then the parties hereto agree that Seller's sole remedy shall be to
cause Escrow Agent to deliver to Seller the Initial Deposit or the Deposit, as
the case may be, in the manner provided in Section 4.05, which shall be retained
by Seller as liquidated damages, whereupon this Agreement shall terminate and
neither party to this Agreement shall have any further rights or obligations
hereunder (other than any such rights or obligations that are expressly stated
to survive the termination hereof). The provisions contained in this Agreement
for liquidated and agreed-upon damages are bona fide provisions and are not a
penalty, the parties agreeing that, by reason of Seller binding itself to the
transfer of the Property and by reason of the withdrawal of the Property from
sale at a time when other parties would be interested in acquiring the Property,
Seller will have sustained damages if Purchaser defaults, which damages will be
substantial but will not be capable of determination with mathematical precision
and therefore, as aforesaid, this provision for liquidated and agreed-upon
damages has been incorporated in this Agreement as a provision beneficial to
both parties.
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(b) (i) If the Closing shall not occur due to Seller's failure or
refusal to perform Seller's obligations in accordance with this Agreement in
each case after all of the conditions precedent have been satisfied, then the
parties hereto agree that Purchaser, as its sole remedy, shall either (x)
terminate this Agreement by written notice given to Seller and Escrow Agent,
whereupon Escrow Agent shall return to Purchaser the Initial Deposit or the
Deposit, as the case may be, in the manner provided in Section 4.05, and neither
party to this Agreement shall have any further rights or obligations hereunder
(other than any such rights or obligations that are expressly stated in this
Agreement to survive the termination hereof), or (y) bring an action against
Seller to seek specific performance of Seller's obligations hereunder without
any abatement of the Purchase Price or allowance of any kind and in which
proceeding no monetary claim is made, or monetary judgment or other relief
obtained, against Seller.
(ii) Purchaser's sole remedy with respect to a violation of a
representation by Seller contained in Section 3.01 of this Agreement discovered
by Purchaser prior to the Closing shall be, to either (1) terminate this
Agreement by written notice given to Seller and to Escrow Agent, whereupon
Escrow Agent shall return to Purchaser the Initial Deposit or the Deposit, as
the case may be, in the manner provided in Section 4.05, and neither party to
this Agreement shall have any further rights or obligations hereunder (other
than any such rights or obligations that are expressly stated in this Agreement
to survive the termination hereof), or (2) close the transaction contemplated
hereby (without any abatement of the Purchase Price or allowance of any kind),
in which event Purchaser shall be deemed to have waived any violation of such
representation.
(iii) With respect to a violation of a representation by
Seller contained herein or made pursuant hereto discovered by Purchaser after
the Closing, subject to the limitation of survival of a representation set forth
in Section 3.01 hereof, Purchaser shall be entitled to commence an action for
actual money damages against Seller; provided, however, that Seller's liability
hereunder shall in no event exceed an amount equal to the cash portion of the
Purchase Price actually received by Seller less Seller's Closing Costs; and
provided, further, that in no event shall Purchaser have the right to collect
any consequential or indirect damages from Seller and Purchaser waives any and
all such rights.
(iv) Anything contained in this Agreement to the contrary
notwithstanding, no recourse shall be had for the payment of any sum due under
this Agreement, or for any claim based hereon or otherwise in respect hereof
against any members, directors, officers, employees, shareholders,
policyholders, partners, affiliates, trustees, administrators or agents of
Seller or of any of the foregoing or the legal representative, heir, estate,
successor or assignee of any of the foregoing, or against any other person,
partnership, corporation or trust, as principal of Seller, whether disclosed or
undisclosed (collectively, "Seller's Related Parties"). It is understood and
agreed by the parties that none of the obligations of Seller under or with
respect to this Agreement may be enforced against Seller's Related Parties.
(v) Anything contained in this Agreement to the contrary
notwithstanding, no recourse shall be had for the payment of any sum due under
this Agreement, or for any claim based hereon or otherwise in respect hereof
against any members, directors, officers, employees, shareholders,
policyholders, partners, affiliates, trustees, administrators or agents of
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Purchaser or of any of the foregoing or the legal representative, heir, estate,
successor or assignee of any of the foregoing, or against any other person,
partnership, corporation or trust, as principal of Purchaser, whether disclosed
or undisclosed (collectively, "Purchaser's Related Parties"). It is understood
and agreed by the parties that none of the obligations of Purchaser under or
with respect to this Agreement may be enforced against Purchaser's Related
Parties.
ARTICLE III
Representations and Warranties
3.01. Seller Representations and Warranties. Seller represents and
warrants to Purchaser that each of the following representations and warranties
is true and correct as of the date hereof, and shall continue to be true and
correct in all material respects as of the Closing Date:
(a) Seller is a business trust duly formed, validly existing and in
good standing under the laws of the State of Delaware.
(b) Seller has all requisite power and authority to execute and
deliver this Agreement and all documents, certificates, agreements, instruments
and writings it is required to deliver hereunder (collectively, the "Seller
Closing Documents"), and, subject to obtaining Lender's consent as set forth
herein, to perform, carry out and consummate the transactions contemplated
hereby and thereby, including the power and authority to sell, transfer and
convey the Property. The execution, delivery and performance of this Agreement
and the other Seller Closing Documents have been duly authorized by all
necessary action of Seller, including any required approval of the members of
Seller. This Agreement has been duly executed by or on behalf of Seller. This
Agreement does, and when executed by Seller, the other Seller Closing Documents
shall, constitute the legal, valid and binding obligations of Seller,
enforceable against Seller in accordance with their respective terms, except as
such enforceability may be limited by bankruptcy, insolvency or similar laws and
by equitable principles.
(c) There is no action, suit or proceeding before any court or
governmental or other regulatory or administrative agency, commission or
tribunal pending against Seller or, to the actual knowledge of Seller,
threatened against Seller.
(d) This Agreement and the Seller Closing Documents do not and will
not contravene any provision of the certificate of formation or limited
liability company agreement of Seller, any judgment, order, decree, writ or
injunction issued against Seller, or any provision of any laws or governmental
ordinances, rules, regulations, orders or requirements (collectively, "Laws")
applicable to Seller. The consummation of the transactions contemplated hereby
will not (provided Lender consents to the purchase of the Property by Purchaser
and accepts a Replacement Indemnitor) result in a breach or constitute a default
or event of default by Seller under any agreement to which Seller or any of its
assets are subject or by which Seller or any of its assets is bound and will not
result in a violation of any Laws applicable to Seller.
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(e) The execution and delivery of this Agreement and the Seller
Closing Documents, and the consummation by Seller of the transactions
contemplated hereby, do not require any governmental or other authorization,
consent or approval.
(f) Seller has delivered to Purchaser true and complete copies of
the Property Material Agreements.
(g) Seller has not entered into any leases, licenses or other
occupancy agreements affecting all or any portion of the Property on the date
hereof, other than the Net Lease, nor does Seller have actual knowledge of any
such leases, licenses or occupancy agreements. The Net Lease is in full force
and effect as of the date hereof. Seller has not given Lessee any written notice
of default by Lessee under the Net Lease which default remains uncured. Seller
has not received written notice of any assignment of the Net Lease by Lessee.
(h) Seller has not received written notice of any uncured default
from (i) Lessee under the Net Lease, or (ii) Lender under the Mortgage. Seller
has not received any written notice from Lessee regarding pending offsets
against the rent or for any other monetary or non-monetary claims against
Seller.
(i) Except as described on Schedule I hereto (the "Pending
Condemnation"), Seller has not received written notice that the Property is
subject to any pending condemnation or eminent domain proceeding.
(j) Seller is not a foreign person within the meaning of section
1445 of the Internal Revenue Code of 1986, as amended. Seller shall deliver to
Purchaser at the Closing a non-foreign person affidavit (a "FIRPTA Affidavit")
containing such information as shall be required by said section 1445.
(k) Except as may be contained in the Property Material Agreements,
Seller has not granted any rights of first refusal to purchase or lease the
Property, or agreements to otherwise acquire an interest in the Property.
(l) Seller has not granted Lessee any "free rent", rent concessions,
rebates, rent abatements, set-off's or offsets against rent or tenant
improvement allowances except as expressly set forth in the Net Lease.
(m) Seller has not entered into any agreements for the payment of
any brokerage commissions which will be due after the Closing either (i) in
connection with the Agency Leases or the Net Lease, or (ii) upon the extension
or renewal of the Agency Leases or the Net Lease.
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(n) There is no money or security, including letters of credit,
deposited by Lessee with Seller.
(o) Lessee has waived its right of first refusal granted to it in
the Net Lease.
(p) Except as otherwise set forth in that certain Phase I
Environmental Report, dated August 27, 1998, prepared by EMG, Seller has
received no written notice of the existence of any hazardous substances on the
Property in violation of applicable legal requirements.
For purposes of this Section 3.01 and Section 4.04(d), references to
"Seller's actual knowledge" or words of similar import shall mean the actual
knowledge of, (i) Xxxxx X. Xxxx, who is a senior officer of USRA, L.L.C., and
(ii) Xxxxx Xxxxxxxx and Xxxxxxxx Xxxxxxx Xxxxxx, the asset managers of Seller
(collectively, the "Designated Parties"), and shall not be construed, by
imputation or otherwise, to impose upon the Designated Parties any duty to
investigate the matter to which it has actual knowledge. Purchaser acknowledges
that the Designated Parties are included in the term Seller's Related Parties
(as defined in Section 2.05(b)(iv) hereof) and shall have no personal liability
hereunder.
With respect to a violation of a representation or warranty of Seller
(whether contained in this Agreement or made pursuant hereto) discovered by
Purchaser after the Closing Date, such representations and warranties of Seller
shall survive the Closing for a period of six (6) months, subject to the terms
of Section 2.05 hereof.
3.02. Purchaser Representations and Warranties. Purchaser represents and
warrants to Seller that each of the following representations and warranties is
true and correct as of the date hereof, and shall continue to be true and
correct in all material respects as of the Closing Date:
(a) Purchaser is a New York limited liability company duly
organized, validly existing and in good standing under the laws of its
jurisdiction of formation.
(b) Purchaser has all requisite power and authority to execute and
deliver this Agreement and all documents, certificates, agreements, instruments
and writings it is required to deliver hereunder, if any (collectively, the
"Purchaser Closing Documents"), and to perform, carry out and consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement and the other Purchaser Closing Documents have
been duly authorized by all necessary limited liability company action on the
part of Purchaser. This Agreement has been duly executed by or on behalf of
Purchaser. This Agreement does, and when executed by Purchaser, the other
Purchaser Closing Documents shall, constitute the legal, valid and binding
obligations of Purchaser enforceable against Purchaser in accordance with their
respective terms, except as such enforceability may be limited by bankruptcy,
insolvency or similar laws and by equitable principles.
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(c) There is no action, suit or proceeding before any court or
governmental or other regulatory or administrative agency, commission or
tribunal pending or, to the best knowledge of Purchaser, threatened against
Purchaser which, if determined adversely to Purchaser, could reasonably be
expected to interfere in any material respect with the ability of Purchaser to
perform its obligations under this Agreement.
With respect to a violation of a representation or warranty of Purchaser
(whether contained in this Agreement or made pursuant hereto) discovered by
Seller after the Closing, such representations and warranties of Purchaser shall
survive the Closing for a period of six (6) months.
ARTICLE IV
Conditions
4.01. The obligation of Seller under this Agreement to consummate the
transactions contemplated hereby shall be subject to the satisfaction of all the
following conditions, any one or more of which may be waived in writing by
Seller:
(a) Seller shall have received payment of the Purchase Price in
accordance with Section 2.02 of this Agreement.
(b) Purchaser shall have delivered all of the documents and other
items described in Section 5.01.
(c) The representations and warranties of Purchaser set forth in
Section 3.02 above shall be true and correct in all material respects when made
and as of the Closing Date.
(d) Lender shall accept the prepayment in full of the Mortgage Notes
and, upon such prepayment, shall have released Seller from all liability to
Lender under the Existing Loan Documents.
4.02. The obligation of Purchaser under this Agreement to consummate the
transactions contemplated hereby shall be subject to the satisfaction of all of
the following conditions, any one or more of which may be waived in writing by
Purchaser:
(a) Seller shall have delivered all of the documents and other items
described in Section 5.02.
(b) Purchaser shall have received an estoppel certificate executed
by Lessee in the form required by the Net Lease.
(c) The representations and warranties of Seller set forth in
Section 3.01 above shall be true and correct in all material respects when made
and as of the Closing Date.
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(d) Lender shall accept the prepayment in full of the Mortgage Notes
and, upon such prepayment, shall have released Seller from all liability to
Lender under the Existing Loan Documents.
(e) Seller shall have complied in all material respects with all of
its covenants and agreements under this Agreement, to the extent same are
required to be performed or complied with on or prior to the Closing Date.
4.03 In the event any of the conditions to Seller's or Purchaser's
obligations to consummate the transactions contemplated by this Agreement set
forth in this Section 4 are not satisfied on or before the Closing Date (other
than by reason of any default by Seller or Purchaser under this Agreement, in
which case the non-defaulting party shall be entitled to exercise the applicable
remedies provided for in Section 2.05 hereof), then the sole remedy of Purchaser
or Seller shall be to terminate this Agreement upon the giving of written notice
to the other party whereupon this Agreement shall be terminated, Purchaser shall
be entitled to receive the Deposit (together with all interest accrued thereon)
and neither Seller nor Purchaser shall have any further obligations hereunder
other than any obligations expressly stated herein to survive the termination or
expiration of this Agreement.
4.04. Purchaser's Due Diligence/Title/Condemnation & Casualty.
(a)(i) Seller makes no representation or warranty with respect to
any matter whatsoever, including, without limitation, the Property or the
physical aspects and condition of the Property, except as expressly set forth
herein. Purchaser shall accept the Property in its "as- is" condition and in an
"as-is" state of repair. Purchaser agrees that, except as expressly set forth
herein, Seller shall not be bound in any manner whatsoever by any guarantees,
promises, projections, operating expenses, set-ups or other information
pertaining to the Property made, furnished or claimed to have been made or
furnished by Seller or any other person or entity, or any partner, employee,
consultant, agent, attorney or other person representing or purporting to
represent Seller whether verbally or in writing. Purchaser acknowledges that,
except as expressly set forth in this Agreement, neither Seller nor any of the
employees, agents or attorneys of Seller have made or is making any verbal or
written representations or warranties whatsoever to Purchaser, whether express
or implied, and, in particular, that no such representations and warranties have
been made with respect to the physical or environmental condition or operation
of the Property, the actual or projected revenue and expenses of the Property,
the zoning and other laws, regulations and rules applicable to the Property.
Purchaser has not relied and is not relying upon any representations or
warranties other than the representations and warranties expressly set forth in
this Agreement, or upon any statements made in any informational materials with
respect to the Property provided by Seller or any other person or entity, or any
shareholder, employee, agent, attorney or other person representing or
purporting to represent Seller.
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(ii) Subject to the rights of the Lessee under the Net Lease, from
the Effective Date until the expiration of the Diligence Period, Purchaser, its
agents, contractors and consultants shall be entitled to enter upon the Property
to conduct inspections, studies, surveys, analyses and tests of the Property,
including but not limited to environmental studies, as Purchaser may deem
appropriate; provided, however, that no invasive testing shall be conducted
inside any building on the Property. Purchaser shall restore any damage to the
Property caused by Purchaser or Purchaser's consultants (including damage caused
prior to the date hereof) during the performance of any such inspections,
studies, surveys, analyses and tests of the Property and Purchaser shall
indemnify, defend and hold Seller harmless against any and all claims,
liabilities, damages, losses, costs or expenses (including reasonable attorneys'
fees and expenses) caused by any such any such inspections, studies, surveys,
analyses and tests of the Property and against any lien which may be filed
against the Property as a result thereof. The provisions of this Section 4.04
shall survive the termination of this Agreement and the Closing. Purchaser
acknowledges that any inspections, studies, surveys, analyses and tests of the
Property shall be subject to the rights of the Lessee under the Net Lease, and
that such inspections, studies, surveys, analyses and tests of the Property may
only be conducted in accordance with the terms of the Net Lease.
(iii) Purchaser's obligation to purchase the Property pursuant to
the terms of this Agreement is specifically conditioned upon the satisfactory
completion of its due diligence investigation ("Purchaser's Due Diligence
Condition"). At any time prior to 5:00 P.M. (Eastern Standard Time) on the date
which is thirty (30) days after the Effective Date (the "DD Termination
Deadline"), Purchaser may give notice to Seller of Purchaser's election to
terminate this Agreement. Upon the Purchaser's written election to so terminate
this Agreement in accordance with the foregoing, Purchaser shall receive a
return of the Initial Deposit (together with all interest accrued thereon) and
in such event, this Agreement shall be of no further force and effect (subject
to any obligations expressly stated herein to survive the termination or
expiration of this Agreement). If Purchaser does not give such notice of
termination by the DD Termination Deadline (time being of the essence with
respect to the giving of such notice by the DD Termination Deadline, unless
extended by Purchaser in accordance with Section 4.04(a)(iv) hereof), Purchaser
shall be deemed to have approved the Property in all respects, including,
without limitation, the Property Material Agreements, the Title Policy and all
agreements, encumbrances and other matters referenced therein, the physical and
legal condition of the Property and all other matters relating to the Property
and/or the use thereof and all other matters which were or may have been the
subject of Purchaser's due diligence investigation and Purchaser shall be deemed
to have waived its right to object to any such matters pursuant to this Section
4.04(a)(iii) or otherwise. In addition, if Purchaser does not give such notice,
the Initial Deposit shall become non-refundable, except as otherwise expressly
provided elsewhere in this Agreement. The period commencing on the date hereof
and ending on the DD Termination Deadline is referred to in this Agreement as
the "Diligence Period". Upon request of Seller, Purchaser shall have the
obligation to deliver to Seller the originals or copies of all plans, reports
and other information concerning the Property obtained by Purchaser from Seller
during its review of the Property in the event this Agreement is terminated by
either party other than as a result of Seller's default hereunder.
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(b) Purchaser has received a copy of the existing title insurance
policy for the Property (the "Title Policy") issued by the Title Insurer and a
copy of the existing survey. Purchaser shall be responsible for ordering a new
owner's title insurance policy in the amount of the Purchase Price. As provided
in Section 4.04(a)(iii) hereof, Purchaser shall be entitled to terminate this
Agreement for any reason at any time prior to the expiration of the Diligence
Period. If any update of the Title Policy obtained subsequent to the expiration
of the Diligence Period sets forth any exceptions to title which are not
Permitted Exceptions (as hereinafter defined) and were not set forth in the
title report obtained by Purchaser during the Diligence Period, or if any
material encroachments or other matters affecting title to the Property that are
not shown on the existing survey, and that are not reflected in any new survey
or update of the existing survey obtained by Purchaser prior to the expiration
of the Diligence Period, are reflected on any survey obtained by Purchaser
subsequent to expiration of the Diligence Period, Purchaser shall be entitled,
at its option, to terminate this Agreement and obtain a return of the Deposit
together with all interest accrued thereon (provided that notice of termination
is given not later than the date which is five (5) business days after the date
Purchaser obtains such post-Diligence Period title or survey update), and in
such event, this Agreement shall be of no further force and effect (subject,
however, to any obligations expressly stated to survive the termination or
expiration of this Agreement). For the purposes hereof, "Permitted Exceptions"
shall mean (i) those exceptions to title reflected in the Title Policy, (ii)
liens for real estate taxes and other liens and encumbrances which, under the
terms of the Net Lease, the Lessee is obligated to pay or cause to be released,
and (iii) any other exceptions to title of a de minimis nature that (A) do not
adversely affect the value or utility of the Property for its current use, and
(B) are of a type and magnitude such as purchasers of properties similar to the
Property are generally willing to accept. Subsequent to the expiration of the
Diligence Period, if Purchaser shall not have terminated this Agreement pursuant
to Section 4.04(a)(iii), Purchaser shall not be entitled to object to any
matters which are disclosed in the Title Policy or in the existing survey.
(c) Except with respect to the Pending Condemnation, in the event
that Seller receives written notice, or otherwise obtains actual knowledge, that
a "significant portion" of the Property is or will be taken by eminent domain,
Seller shall notify Purchaser of such fact and Purchaser may elect to terminate
this Agreement by written notice to Seller within ten (10) days after Purchaser
is notified that a "significant portion" of the Property has been or will be
taken by eminent domain (time being of the essence with regard to Purchaser's
obligation to deliver notice on or before such date), in which case Purchaser
shall either (1) cause Escrow Agent to return to Purchaser the Deposit (together
with all interest accrued thereon), whereupon this Agreement shall terminate and
neither party to this Agreement shall have any further rights or obligations
hereunder (except for any obligations expressly stated herein to survive the
termination or expiration of this Agreement), or (2) close the transaction
contemplated hereby, in which event, (i) Purchaser shall be deemed to have
waived any right to terminate this Agreement pursuant to this Section 4.04(c),
and (ii) there shall be no reduction in the Purchase Price. For purposes of this
Section 4.04(c), a "significant portion" of the Property shall be deemed to be
any portion of the Property which, when subject to a condemnation proceeding,
15
gives rise to the right of the Lessee under the Net Lease to terminate the Net
Lease (irrespective of whether Lessee in fact exercises such termination right),
or to any reduction (other than a de minimis deduction) in the rent payable by
Lessee under the Net Lease. In the event that the Closing takes place and the
Property is taken by eminent domain, Purchaser shall be entitled to the rights
of Seller set forth in the Net Lease (including, without limitation, the rights,
if any, to condemnation proceeds with respect to such condemnation) and subject
to the obligations set forth in the Mortgage.
(d) In the event that Seller has actual knowledge or receives
written notice that a "substantial portion" of the Property is damaged or
destroyed by casualty, Seller shall notify Purchaser of such fact, and Purchaser
shall be entitled, at its option, to elect (1) to terminate this Agreement by
written notice to Seller within ten (10) days after Purchaser is notified that a
"substantial portion" of the Property has been damaged or destroyed by casualty
(time being of the essence with regard to Purchaser's obligation to deliver
notice on or before such date), in which case it shall cause Escrow Agent to
return to Purchaser the Deposit (together with all interest accrued thereon),
whereupon this Agreement shall terminate and neither party to this Agreement
shall have any further rights or obligations hereunder (except for any
obligations expressly stated herein to survive the termination or expiration of
this Agreement), or (2) to close the transaction contemplated hereby, in which
event, (i) Purchaser shall be deemed to have waived any right to terminate this
Agreement pursuant to this Section 4.04(d), and (ii) there shall be no reduction
in the Purchase Price. For purposes of this Section 4.04(d), a "substantial
portion" of the Property shall be deemed to be any portion of the Property which
when subject to a casualty gives rise to the right of the Lessee under the Net
Lease to terminate the Net Lease (irrespective of whether Lessee in fact
exercises such termination right). In the event that the Closing takes place and
the Property is damaged or destroyed by casualty, Purchaser shall be entitled to
the rights of Seller set forth in the Net Lease (including, without limitation,
the rights, if any, to insurance proceeds with respect to such casualty) and
subject to the obligations set forth in the Mortgage.
4.05. Escrow Provision.
(a) The Initial Deposit and the Additional Deposit shall be
delivered by Purchaser to Escrow Agent as provided in Section 2.02(a) hereof.
The parties agree that the Initial Deposit and the Additional Deposit shall be
held by Escrow Agent in escrow and disposed of only in accordance with the
provisions of this Section 4.05. Escrow Agent shall have the right to hold the
Initial Deposit and the Additional Deposit in escrow in the event of any
contested claims by either party relating thereto. The Initial Deposit and the
Additional Deposit and any interest thereon shall be paid over to the party
entitled to receive the same in accordance with this Section 4.05.
(b) Escrow Agent will deliver the Initial Deposit and the Additional
Deposit to Seller or Purchaser upon the following conditions:
(i) At the Closing, upon the consummation thereof, Escrow
Agent shall deliver the Deposit, together with any interest earned
thereon, to Seller; or
16
(ii) Escrow Agent shall deliver the Deposit, or so much
thereof as shall theretofore have been delivered to Escrow Agent to Seller
and/or Purchaser, as the case may be, upon receipt of written demand
therefor, stating that this Agreement has been terminated in accordance
with the terms hereof or the Closing has not taken place under this
Agreement by reason of the failure of either party to comply with its
obligations hereunder and therefore, such party is entitled to the
Deposit, or so much thereof as shall theretofore have been delivered to
Escrow Agent (together with any interest earned thereon), and in such
event, Escrow Agent shall deliver the Deposit, or so much thereof as shall
theretofore have been delivered to Escrow Agent (together with any
interest earned thereon) to Seller and/or Purchaser, as the case may be;
provided, however, that Escrow Agent shall not honor such demand until
more than ten (10) days after Escrow Agent shall have given a copy of such
demand to the other party, nor thereafter if Escrow Agent shall have
received written notice of objection from such party in accordance with
the provisions of Section 4.05(c),
(c) Upon the filing of a written demand for the Deposit (or so much
thereof as shall theretofore have been delivered to Escrow Agent) by Purchaser
or Seller, pursuant to subsection (ii) of Section 4.05(b), Escrow Agent shall
promptly give a copy thereof to the other party. The other party shall have the
right to object to such delivery by filing written notice of such objection with
Escrow Agent at any time within ten (10) days after the giving of such copy to
it, but not thereafter. Such notice shall set forth the basis for objecting to
such delivery of the Deposit (or so much thereof as shall theretofore have been
delivered to Escrow Agent). Upon receipt of such notice, Escrow Agent shall
promptly give a copy thereof to the party who filed the written demand. Any
notice or copy thereof given pursuant to this paragraph shall be given in a
manner permitted by Section 6.01 of this Agreement.
(d) In the event Escrow Agent shall have received the notice of
objection provided for in Section 4.05(c) within the time therein prescribed,
Escrow Agent shall continue to hold the Deposit (or so much thereof as shall
theretofore have been delivered to Escrow Agent) until (i) Escrow Agent receives
written notice executed on behalf of both Seller and Purchaser directing the
disbursement or delivery thereof, in which case Escrow Agent shall then disburse
or deliver in accordance with said direction, (ii) in the event of litigation
between Seller and Purchaser, Escrow Agent shall deposit the Deposit (or so much
thereof as shall theretofore have been delivered to Escrow Agent) with the Clerk
of the Court in which said litigation is pending or (iii) Escrow Agent takes
such affirmative steps as Escrow Agent may, at Escrow Agent's option, elect in
order to terminate Escrow Agent's duties as Escrow Agent, including but not
limited to deposit in Court and an action in interpleader, the costs thereof to
be borne by whichever of Seller or Purchaser is the losing party. In the event
any dispute arises between Seller and Purchaser, the parties agree that Escrow
Agent may act as counsel for Seller.
(e) Escrow Agent may act upon any instrument or other writing
believed by it, in good faith, to be genuine and to be signed and presented by
the proper person, and shall not be liable in connection with the performance of
any duties imposed upon Escrow Agent by the provisions of this Agreement except
for Escrow Agent's own willful misconduct or gross negligence. Escrow Agent
shall have no duties or responsibilities except those set forth herein. Escrow
Agent shall not be bound by any modification of this Agreement unless the same
17
is in writing and signed by Purchaser and Seller, and, if Escrow Agent's duties
hereunder are affected, unless Escrow Agent shall have given prior written
consent thereto. In the event Escrow Agent shall be uncertain as to Escrow
Agent's duties or rights hereunder, or shall receive instructions from Purchaser
or Seller which, in Escrow Agent's opinion, are in conflict with any of the
provisions hereof, Escrow Agent shall be entitled to hold and disburse the
Deposit (or so much thereof as shall theretofore have been delivered to Escrow
Agent) pursuant to Section 4.05(d) and may decline to take any other action.
(f) Escrow Agent shall deposit the Initial Deposit, the Additional
Deposit and the Supplemental Deposit, if any, in a money market account or other
interest bearing account at Citibank, N.A.
(g) Purchaser (i) acknowledges that Escrow Agent is special counsel
to Seller in connection with the transaction contemplated by this Agreement, and
(ii) agrees that Escrow Agent may continue to act as counsel to Seller in
connection with any dispute between Seller and Purchaser with respect to this
Agreement, the Deposit or otherwise.
(h) Seller and Purchaser hereby agree to jointly and severally
indemnify and hold Escrow Agent harmless from any damage, cost, liability or
expense (including, but not limited to, reasonable legal fees) which Escrow
Agent may incur by reason of its acting hereunder (but neither Seller nor
Purchaser shall be liable for Escrow Agent's legal fees or services unless a
dispute or litigation should arise under this Paragraph), without prejudice to
any right either party may have to recover from the other party for any such
damage, cost, liability or expense and excluding any damages, costs, liabilities
or expenses which arise by reason of the gross negligence or willful misconduct
of Escrow Agent.
4.06. Seller's Pre-Closing Covenants. From and after the Effective
Date, Seller shall not, without Purchaser's prior written consent in each
instance, (a) enter into any new leases or contracts that will be binding upon
the Property or Purchaser subsequent to the Closing, or (b) modify or amend the
Net Lease, the Existing Loan Documents (or any of them) or any other Property
Material Agreement or Existing Agreement .
ARTICLE V
Closing Deliveries
5.01. Purchaser's Closing Deliveries. At or prior to the Closing,
Purchaser shall make or cause to be made the following deliveries:
(a) Purchaser shall have paid to Seller the Purchase Price in
accordance with Section 2.02 of this Agreement.
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(b) Purchaser shall have executed and delivered to Seller (i) an
assignment and assumption of the Net Lease in substantially the form attached as
Exhibit B hereto (the "Assignment of Net Lease", and (ii) an assignment and
assumption of the Agency Leases substantially in the form attached as Exhibit C
hereto (the "Assignment of Agency Leases").
(c) Purchaser shall have delivered to Seller evidence as to the
authority of the person or persons executing documents on behalf of Purchaser.
(d) Purchaser shall have executed and delivered any other documents,
instruments or certificates, including, without limitation, all recording and
transfer tax forms and affidavits, reasonably required to be delivered to
consummate the transaction contemplated hereby.
5.02. Seller's Closing Deliveries. At or prior to the Closing, Seller
shall make or cause to be made the following deliveries:
(a) Seller shall have executed and delivered to Purchaser (i) the
Assignment of Agency Leases, and (ii) the Assignment of Net Lease.
(b) Seller shall have executed and delivered to Purchaser the FIRPTA
Affidavit.
(c) Seller shall have delivered to Purchaser evidence as to the
authority of the person or persons executing the Seller Closing Documents on
behalf of Seller.
(d) Seller shall have executed and delivered any other documents,
instruments or certificates, including without limitation, all recording and
transfer tax forms and affidavits, reasonably required to be delivered to
consummate the transaction contemplated hereby.
(e) To the extent received by Seller following Seller's written
demand therefore, an estoppel certificate from Lessee in the form contemplated
by the Net Lease and an estoppel certificate from the Agency in the form
contemplated by the Agency Leases.
ARTICLE VI
Miscellaneous
6.01. Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally, by overnight courier using a nationally recognized courier, or by
facsimile transmission to the parties at the following addresses or facsimile
numbers:
19
If to Seller, to:
c/o U.S. Realty Advisors, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xx. Xxxxx X. Xxxx
with a copy, which shall not constitute notice, to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to Purchaser, to:
Micron Realty LLC
c/o GE Equities Corp.
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx
Facsimile No.
with a copy, which shall not constitute notice, to:
Law Office of Xxxxxxx Xxxxxxx
0000 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
Attn.: Xxxxxxx Xxxxxxx, Esq.
If to Escrow Agent, to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally or by overnight courier to the address as provided in this Section,
be deemed given upon delivery, and (ii) if delivered by facsimile transmission
to the facsimile number as provided in this Section, be deemed given upon
confirmed receipt. Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other party hereto.
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6.02. Broker. (a) Seller represents and warrants that neither Seller nor
any of its affiliates or any of their respective directors, officers, partners,
managers or members have dealt with anyone acting as broker, finder, financial
advisor or in any similar capacity in connection with this Agreement or any of
the transactions contemplated hereby other than CB Xxxxxxx Xxxxx (the "Broker").
Seller shall indemnify, defend and hold harmless Purchaser from any and all
claims, actions, liabilities, losses, damages and expenses, including reasonable
attorneys' fees and disbursements, which may be asserted against or incurred by
Purchaser arising from a breach of Seller's representation contained in this
Section 6.02(a). Upon the Closing of the transactions contemplated hereby,
Seller shall pay the commission due to the Broker as per separate agreement.
(b) Purchaser represents and warrants that neither Purchaser nor any
of its affiliates or any of their respective directors, officers, partners,
managers or members have dealt with anyone acting as broker, finder, financial
advisor or in any similar capacity in connection with this Agreement or any of
the transactions contemplated hereby other than the Broker. Purchaser shall
indemnify, defend and hold harmless Seller from any and all claims, actions,
liabilities, losses, damages and expenses, including reasonable attorneys' fees
and disbursements, which may be asserted against or incurred by Seller arising
from a breach of Purchaser's representation contained in this Section 6.02(b).
(c) The provisions of this Section 6.02 shall survive Closing and
any termination of this Agreement.
6.03. Entire Agreement. This Agreement, including all exhibits and
schedules hereto, the Seller Closing Documents and the Purchaser Closing
Documents supersede all prior discussions and agreements between the parties
with respect to the subject matter hereof and thereof, and contain the sole and
entire agreement between the parties hereto with respect to the subject matter
hereof and thereof.
6.04. Waiver. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in written instrument duly executed by or on
behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by applicable law or otherwise afforded, will be cumulative and not
alternative.
6.05. Modification. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
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6.06. Successors and Assigns. The terms and provisions of this Agreement
are intended solely for the benefit of each party hereto and their respective
successors or permitted assigns, and it is not the intention of the parties to
confer third-party beneficiary rights upon any other person. Subject to the
terms of Sections 2.05(b)(iv), 2.05(b)(v) and 6.10 hereof, this Agreement is
binding upon, inures to the benefit of and is enforceable by the parties hereto
and their respective successors and assigns.
6.07. Interpretation. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, valid or unenforceable provision or by its
severance herefrom and (d) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
6.08. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
6.09. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.10. Assignment. Purchaser shall not assign or transfer its rights or
obligations under this Agreement without the prior written consent of Seller,
which consent may be granted or denied in Seller's sole discretion.
Notwithstanding the foregoing, Purchaser shall have the right, without Seller's
consent, to assign this Agreement to any affiliate of Purchaser controlled by or
under common control with Purchaser, provided such assignee agrees to assume,
pursuant to an instrument acceptable to Seller (but subject to the provisions of
Section 2.05(b)(v) hereof), the obligations of Purchaser hereunder. No
assignment of this Agreement by Purchaser shall relieve the Purchaser named
herein of its obligations hereunder and, subsequent to any such assignment, the
liability of such named Purchaser hereunder shall continue notwithstanding any
subsequent modification or amendment hereof or the release of any subsequent
purchaser hereunder from any liability, to all of which Purchaser consents in
advance.
6.11 Wilmington Trust. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by Wilmington,
not individually or personally, but solely as the trustee of Purchaser under the
Trust Agreement dated as of September 24, 1998, in the exercise of the powers
and authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of Purchaser are made and
intended not as personal representations, undertakings and agreements by
Wilmington, but are made and intended for the purpose for binding only
Purchaser, (c) nothing herein contained shall be construed as creating any
22
liability on Wilmington, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any person or entity claiming by,
through or under the parties hereto and (d) under no circumstances shall
Wilmington be personally liable for the payment of any indebtedness or expenses
of Purchaser or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Purchaser under this
Agreement or related documents.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
23
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the day and year first above written.
SELLER:
AMHERST INVESTORS BUSINESS TRUST
By: Wilmington Trust Company,
not in its individual capacity
but solely as Trustee
By: ________________________________
Name:
Title:
PURCHASER:
MICRON REALTY LLC
By: ________________________________
Name:
Title:
The undersigned hereby joins in this Agreement for the purpose of agreeing to
hold the Initial Deposit and the Additional Deposit in escrow in accordance with
the provisions of Section 4.05 hereof:
PROSKAUER ROSE LLP
By:______________________________
Name:
Title:
Exhibit A
PROPERTY
SEE ATTACHED
Exhibit B
FORM OF ASSIGNMENT AND ASSUMPTION OF NET LEASE
AMHERST INVESTORS BUSINESS TRUST
(Assignor)
to
(Assignee)
ASSIGNMENT AND ASSUMPTION OF LEASE
Dated: As of ___________, 2005
Location: 0000 Xxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx
000 Xxxxxx Xxxx/00 Xxxxxx Xxxx,
Xxxxxxx, Xxx Xxxx
RECORDING REQUESTED BY, AND
AFTER RECORDING RETURN TO:
ASSIGNMENT AND ASSUMPTION OF NET LEASE
THIS ASSIGNMENT AND ASSUMPTION OF NET LEASE (this "Assignment") is
made as of the ____ day of ________, 2005, by and between AMHERST INVESTORS
BUSINESS TRUST, a Delaware business trust, having an address c/o U.S. Realty
Advisors, LLC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Assignor"), and ______________, a __________________, having an
address("Assignee").
P R E L I M I N A R Y:
A. Assignor is the owner of the leasehold estate covering the real
property, described in Schedule A attached hereto and made a part hereof, and
the buildings and improvements located thereon (collectively, the "Property").
B. Pursuant to that certain lease more particularly described in
Schedule B annexed hereto (the "Lease"), the entire property has been subleased
to Xxxxxx Micro, Inc. ("Lessee").
C. Pursuant to that certain Purchase and Sale Agreement, dated as of
January ___, 2005, between Assignor, as seller, and Assignee, as purchaser (the
"Purchase and Sale Agreement"), Assignor is conveying its leasehold estate in
the Property to Assignee concurrently with its execution and delivery of this
Assignment.
D. In connection with such conveyance of fee title, Assignor desires
to assign to Assignee all of its right, title and interest, if any, as landlord
under the Lease, and Assignee desires to accept such assignment and to perform
all of the obligations of the landlord under the Lease, upon and subject to the
terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee agree as
follows:
1. Assignor hereby assigns to Assignee all of the right, title and
interest of Assignor as landlord under the Lease; subject however, to the
Permitted Exceptions (as defined in the Purchase and Sale Agreement.
2. Assignee hereby accepts the foregoing assignment and assumes and
agrees to perform in a timely manner, in accordance with the terms and
provisions of the Lease, each and all of the obligations of Assignor, as
landlord under the Lease, first accruing and required to be performed on or
after the date hereof.
3. Except as otherwise expressly provided in the Purchase and Sale
Agreement, the assignment effected hereby shall be on an "as-is, where-is, with
all faults" basis, without recourse to or representation or warranty by
Assignor.
4. This Assignment shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors, transferees and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption of Lease as of the day and year first hereinabove set forth.
ASSIGNOR:
AMHERST INVESTORS BUSINESS TRUST
By: Wilmington Trust Company
not in its individual capacity but
solely as trustee
By: __________________________________
Name:
Title:
ASSIGNEE:
By: __________________________________
Name:
Title:
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On _______________, 2005, before me personally appeared_________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
__________________________
Signature of Notary
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On _______________, 2005, before me personally appeared_________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
__________________________
Signature of Notary
SCHEDULE A [TO EXHIBIT B]
Description of Property
[Schedule A to the Assignment and Assumption of Lease will be the same as
Schedule A to the Purchase and Sale Agreement.]
SCHEDULE B [TO EXHIBIT B]
Description of Lease
Consolidated, Amended and Restated Sublease Agreement, dated as of October
21, 1998, between Wilpet L.P. and Lessee, demising the Property, as assigned to
Seller by Wilpet L.P. pursuant to that certain Assignment and Assumption of
Leasehold Interest, dated as of October 21, 1998, from Wilpet L.P., as assignor,
and Seller, as assignee . A Memorandum of Lease dated as of October 21, 1998 was
filed on __________, 2000 in the Office of ______________, as _________________.
Exhibit C
FORM OF ASSIGNMENT AND ASSUMPTION OF AGENCY LEASES
AMHERST INVESTORS BUSINESS TRUST
(Assignor)
to
(Assignee)
----------
ASSIGNMENT AND ASSUMPTION OF LEASES
----------
Dated: As of ___________, 2005
Location: 0000 Xxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx
000 Xxxxxx Xxxx/00 Xxxxxx Xxxx,
Xxxxxxx, Xxx Xxxx
RECORDING REQUESTED BY, AND
AFTER RECORDING RETURN TO:
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Assignment") is made
as of the ____ day of ________, 2005, by and between AMHERST INVESTORS BUSINESS
TRUST, a Delaware business trust, having an address c/o U.S. Realty Advisors,
LLC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Assignor"), and
______________, a __________________, having an address("Assignee").
P R E L I M I N A R Y:
A. Assignor is the owner of the leasehold estate covering the real
property, described in Schedule A attached hereto and made a part hereof, and
the buildings and improvements located thereon (collectively, the "Property")
pursuant to the leases more particularly described in Schedule B annexed hereto
(collectively, the "Leases").
B. Pursuant to that certain Purchase and Sale Agreement, dated as of
January ___, 2005, between Assignor, as seller, and Assignee, as purchaser (the
"Purchase and Sale Agreement"), Assignor is conveying its leasehold estate in
the Property to Assignee concurrently with its execution and delivery of this
Assignment.
D. In connection with such conveyance of fee title, Assignor desires
to assign to Assignee all of its right, title and interest, if any, as tenant
under the Leases, and Assignee desires to accept such assignment and to perform
all of the obligations of the tenant under the Leases, upon and subject to the
terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee agree as
follows:
1. Assignor hereby assigns to Assignee all of the right, title and
interest of Assignor as tenant under the Leases; subject however, to the
Permitted Exceptions (as defined in the Purchase and Sale Agreement.
2. Assignee hereby accepts the foregoing assignment and assumes and
agrees to perform in a timely manner, in accordance with the terms and
provisions of the Leases, each and all of the obligations of Assignor, as tenant
under the Leases, first accruing and required to be performed on or after the
date hereof.
3. Except as otherwise expressly provided in the Purchase and Sale
Agreement, the assignment effected hereby shall be on an "as-is, where-is, with
all faults" basis, without recourse to or representation or warranty by
Assignor.
4. This Assignment shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors, transferees and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption of Lease as of the day and year first hereinabove set forth.
ASSIGNOR:
AMHERST INVESTORS BUSINESS TRUST
By: Wilmington Trust Company
not in its individual capacity but
solely as trustee
By: __________________________________
Name:
Title:
ASSIGNEE:
By: __________________________________
Name:
Title:
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On _______________, 2005, before me personally appeared_________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
__________________________
Signature of Notary
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On _______________, 2005, before me personally appeared_________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
__________________________
Signature of Notary
SCHEDULE A [TO EXHIBIT C]
Description of Property
[Schedule A to the Assignment and Assumption of Lease will be the same as
Schedule A to the Purchase and Sale Agreement.]
SCHEDULE B [TO EXHIBIT C]
Description of Leases
(i) the Amended and Restated Lease Agreement, dated as of October 21, 1998,
between the Town of Amherst Industrial Development Agency, as lessor, and
Seller, as lessee, a Memorandum of Lease dated as of October 21, 1998 was filed
on __________, 2000 in the Office of ______________, as _________________. and
(ii) the Consolidated, Amended and Restated Lease Agreement, dated as of October
21, 1998, between the Town of Amherst Industrial Development Agency, as lessor,
and Seller, as lessee, a Memorandum of Lease dated as of October 21, 1998 was
filed on __________, 2000 in the Office of ______________, as _________________.
Exhibit D
EXISTING AGREEMENTS
NONE
EXHIBIT E
The following is the schedule of debt service payments under the Existing
Indebtedness that would be present valued back, on a monthly basis, to the
prepayment date based on the weighted average Current Yield of the then-most
recently published (at xxxx://xxx.xxxxxxxxxxxxxx.xxx/xxxxxxxx/x00/xxxx.xxx)
7-year and 10-year Treasury Constant Maturity Yield Index (weekly) rates, to
determine the amount of the prepayment premium payable by Seller under the
Existing Indebtedness. The difference between such present value and the
outstanding principal balance of the debt is the prepayment premium. (The
illustration below assumes a Closing Date of March 1, 2005 at a time when the
most recently published 7-year Treasury Constant Maturity Yield Index (weekly)
is 3.99% and the 10-year Treasury Constant Maturity Yield Index (weekly) is
4.25%. On that basis, the prepayment premium payable by Seller would be
$1,316,784.61, and no additional Purchase Price shall be payable by Purchaser
under Section 2.02(c) hereof. Alternatively, if the computed prepayment premium
payable by Seller were $1,322,000 (because the relevant rates were slightly
lower), then the additional Purchase Price payable by Purchaser shall be
$2,000.)
